Sex attacker Kelvyn Lester, 47, declined to take medication for erectile
dysfunction so officers could photograph his penis for an identification
procedure

Police have been criticised for asking a rape suspect to take medication for erectile dysfunction so officers could photograph his penis for an identification procedure.

Kelvyn Lester, 47, of Peterborough, declined to "achieve an erection" and expose himself to a police photographer so his penis could be compared with one featured in a photograph of a sex crime.

Senior judges have now criticised the "bizarre" demand by officers, and that it was admitted as evidence in Lester’s trial, but refused to quash his convictions after ruling them safe.

The judges also criticised the police saying that the request had breached the police code on how evidence is gathered.

Lester, of Welland, Peterborough, was jailed for 13 years at Leicester Crown Court in July, 2013, after he was convicted of child rape, taking indecent photos of children and possessing indecent images of children.

During the trial, jurors were told they could draw their own conclusions from Lester's refusal to comply with the request.

Three senior judges at London's Appeal Court have said they were "mystified" by the "odd and bewildering" police investigation, but did not overturn the jury’s decision.

Lady Justice Rafferty said police found a vile image of a girl, aged about six, performing a sex act on a man on Lester's mobile phone when they raided his home on unrelated grounds in early 2009.

The photograph showed the male’s midriff exposed, with his blue jogging bottoms pulled down. Police were able to identify and trace the young girl who featured in the image.

When interviewed by police, the victim said she had no recollection of the sex offence or of the photograph being taken years before.

Lester claimed he had no idea how the image got on the phone, insisted he was not featured in it and claimed he had erectile dysfunction from taking medication for diabetes, high-blood pressure and cholesterol, Lady Justice Rafferty said.

A forensic anthropologist told police she was unable to tell whether the penis featured in the indecent image was Lester's, because comparative photographs officers had taken of his organ only showed it "flaccid".

Lady Justice Rafferty said that a detective then called Lester in June, 2010.

"He asked Lester, evidently, to take medication so as to achieve an erection and permit himself to be photographed," she added.

The officer told Lester that, if he supplied photographs of his erect penis, it might help to "eliminate" him from the investigation, but he refused.

During his trial, the judge allowed the prosecution to tell the jury about the officer's request and to invite jurors to "draw an adverse inference" from Lester's refusal to take part.

Lady Justice Rafferty said Lester's denials were disbelieved and he was found guilty of all three offences, after prosecutors put forward a "strong" case.

On appeal, Lester's lawyers argued that the police request breached Police and Criminal Evidence (PACE) Act codes, which regulate how evidence is gathered, and that the details should never have been put before the jury.

It was submitted that the detective failed to explain the possible negative consequences of supplying such a picture, failed to check Lester had legal advice on the issue and failed to tell him a refusal might be used against him in court.

Lady Justice Rafferty, sitting with Mr Justice Cranston and Sir Colin Mackay, said of the request: "There is no dispute at all that it was, on anybody's view, an odd position to take.

"We assume that the officer was not advised by the Crown Prosecution Service and decided of his own volition to follow this bewildering course".

She said Lester should have been warned that a picture of his aroused penis could incriminate him.

The judge added: "The PACE codes are explicit. It should have been pointed out that Lester might wish to take legal advice when he was asked to provide photographs of his erect penis.

"We are quite clear that this was a breach of the (PACE) codes."

Lady Justice Rafferty said that the breach was so serious that it was "important for this odd procedure to be ruled inadmissible and it should never have been before the jury".

"All that said, that is not the end of the matter," she added. "The reason that this strange procedure surprises us is that the Crown did not need it at all.

"This case can evidentially be described as strong, and some may describe it as overwhelming, without the photographs.

"What was so interesting in this bizarre approach mystifies us, but we have said enough on that score."

"The point is that, even though it was wrong to admit the evidence, the case without it was so compelling that we are in no difficulty in recording that these convictions remain safe. This appeal is dismissed."